Proposition 8 backers move to bump liberal judge from appeal

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Courtesy U.S. Ninth Circuit Court of Appeals – These three judges, from the U.S. Ninth Circuit Court of Appeals, will hear the challenge to Proposition 8. Left to right, they are Judge Michael Daly Hawkins, of Phoenix, Ariz.; Judge Stephen R. Reinhardt, of Los Angeles and Judge N. Randy Smith, of Pocatello, Idaho.

Backers of California’s ban on same-sex marriage moved Wednesday to disqualify the most liberal appeals court judge on the panel hearing the legal challenge to Proposition 8.

In court papers, sponsors of Proposition 8 asked 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt to disqualify himself because his wife, Ramona Ripston, is the longtime executive director of the Southern California chapter of the American Civil Liberties Union. The ACLU has been actively involved in trying to invalidate the state’s voter-approved ban on same-sex marriage.

“The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned,” wrote Charles Cooper, the lead attorney defending Proposition 8.

“His wife and the organization she leads have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8, but they have been active participants in this very lawsuit,” Cooper said.

Reinhardt is part of a three-judge panel scheduled to hear arguments Monday in an appeal of a federal judge’s ruling this summer striking down the ban on same-sex marriage because it violates the equal protection rights of gay and lesbian couples. Sponsors of Proposition 8 pressed the appeal without support from state officials, including Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, who have refused to defend the law.

The other two members of the panel are Judge Michael Daly Hawkins, an appointee of President Bill Clinton, and Judge N. Randy Smith, an appointee of President George W. Bush.

The 79-year-old Reinhardt is by far the most high-profile and controversial member of the panel, and the move to disqualify him suggests that Proposition 8 backers are pushing to remove the influence of his liberal leanings from the legal equation.

A 1980 appointee of President Jimmy Carter, Reinhardt is known as the “lion of the left” for a long career marked by liberal rulings on everything from civil rights to the death penalty. Reinhardt has been unapologetic about his reputation, bemoaning in interviews what he considers a shift to the right in the judiciary under recent presidents.

But Proposition 8 backers did not use Reinhardt’s background to argue for his disqualification. Instead, they cited the appearance of bias from his wife’s affiliation with the ACLU and its staunch support for securing the right of same-sex couples to marry. In court papers, they cited other cases through the years in which Reinhardt has recused himself from cases involving the ACLU.

As of Wednesday night, lawyers for same-sex couples had not yet responded to the motion to remove Reinhardt from the case. The ACLU is not the lead legal group in the challenge to the law.

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